Exhibit No. 10.1
Form 8-K
Synthetic Blood International, Inc.
File No. 2-31909
OFFSHORE SECURITIES PURCHASE AGREEMENT
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1033 AND MAY
NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS (OTHER THAN
DISTRIBUTORS) UNLESS THE SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT OF
1933, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
OF 1933 IS AVAILABLE.
This Offshore Securities Purchase Agreement (this "Agreement") is made
by Synthetic Blood International, Inc., a New Jersey corporation (the
"Company"), and the purchaser identified on the signature pages hereto,
including its successors and assigns, (the "Buyer").
WHEREAS, this Agreement is executed in reliance upon the transaction
exemption afforded by Regulation S ("Regulation S") as promulgated by the
Securities and Exchange Commission ("SEC"), under the Securities Act of 1933, as
amended, (the "1933 Act"), and
WHEREAS, this Agreement has been executed by the undersigned in
connection with the sale by the Company of up to
o 10,000,000 A Units of the Company at a price of $0.30 per A
Unit, each Unit consisting of one share of common stock, par
value $0.01 ("Common Stock") and one Series A Warrant in the
form attached hereto as Exhibit A to purchase one share of
Common Stock at an exercise price of $0.49 per share ("Series
A Warrant"), and
o 100,000 B Units of the Company at a price of $0.30 per B Unit,
each B Unit consisting of thirty-four Series B Warrants in the
form attached hereto as Exhibit B, each to purchase one share
of Common Stock at an exercise price of $0.60 per share
("Series B Warrant"), and thirty-four Series C Warrants in the
form attached hereto as Exhibit C, each to purchase one share
of Common Stock at an exercise price of $0.60 per share
("Series C Warrant"), and
WHEREAS, A Units, B Units, and Common Stock underlying the Series A
Warrants, Series B Warrants, and Series C Warrants (collectively the
"Securities") are being purchased from the Company pursuant to Rule 903 of
Regulation S (Capitalized terms used in this Agreement and not defined herein
shall have the meanings given to them in Regulation S).
NOW, THEREFORE, in consideration of the foregoing recitals and the
terms and conditions hereinafter set forth the parties hereto agree as follows:
1. SUBSCRIPTION
(a) The Buyer hereby subscribes for and purchases:
(i) ________________________ A Units at $0.30 per Unit or
a total purchase price of $__________ (U.S.); and/ or
(ii) ________________________ B Units at $0.30 per Unit or
a total purchase price of $__________________ (U.S.).
(b) Buyer has deposited the purchase price by delivering good funds in
United States Dollars to the Company.
2. BUYER'S REPRESENTATIONS. Buyer represents and warrants to the Company as
follows:
(a) Buyer is not a U.S. Person and Buyer was not formed for the purpose
of investing in securities which have not been registered under the 1933 Act in
reliance upon Regulation S by or for the benefit of a U.S. person.
(b) At the time the buy order was originated, Buyer was outside the
United States.
(c) No offer to sell or purchase the A Units or B Units was made in the
United States.
(d) Buyer has not engaged in nor will engage in any "Directed Selling
Efforts," i.e., any activity undertaken for the purpose of, or that could
reasonably be expected to have the effect of, conditioning the market in the
United States for any of the Securities being purchased by the Buyer.
(e) Buyer is purchasing the Securities for its own account and for
investment purposes and not with the view towards distribution or for the
account of a U.S. Person.
(f) All subsequent offers and sales of the Securities shall be made in
compliance with Regulation S and/or pursuant to registration of the Securities
under the 1933 Act or pursuant to an exemption from registration under the 1933
Act. Unless registered for sale under the 1933 Act, the Securities will not be
resold to U.S. Persons or within the United States until after the end of a one
year restricted period commencing on the date of closing of the purchase of the
Securities and otherwise in compliance with Rule 904 of Regulation S.
(g) The Securities are being offered and sold to Buyer in reliance on
Regulation S and the Company is relying upon the truth and accuracy of Buyer's
representations and warranties in order to justify such reliance in connection
with the sale of the Securities to Buyer.
(h) Buyer has received and reviewed the Company's annual report on Form
10-K for the fiscal year ended April 30, 2003, quarterly reports on Form 10-Q
for the fiscal quarters ended July 31, 2003, October 31, 2003, and January 31,
2004, and current reports on Form 8-K filed with the Securities and Exchange
Commission on September 26 and November 11, 2003, and has had an opportunity to
ask questions of and receive information from the Company and its executive
officers and has availed itself of such opportunity to the fullest extent
desired by Buyer.
3 COMPANY REPRESENTATIONS. The Company represents and warrants to Buyer as
follows:
(a) The Company is required to file reports pursuant to Section 15(d)
of the Securities Exchange Act of 1934, as amended, (the "Exchange Act"). The
Company is a "reporting issuer" as defined by Rule 902 of Regulation S. The
Company is current in its reporting obligations with the Securities and Exchange
Commission. The Company's common stock is listed on the Over the Counter
Bulletin Board under the symbol SYBD.
(b) The Company is incorporated in the state of New Jersey and is in
good standing as of the date of this Agreement. The Company's Federal
Identification Number is 00-0000000.
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(c) The Company has not offered the securities which are the subject of
this transaction to any person in the United States, any identifiable groups of
U.S. citizens abroad, or to any U.S. Person as that term is defined in
Regulation S.
(d) At the time the buy order was originated, the Company and/or its
agents reasonably believed Buyer was outside of the United States and was not a
U.S. Person.
(e) The Company and/or its agents reasonably believe that the
transaction has not been pre-arranged with a buyer in the United States.
(f) The Company has not engaged in nor will engage in any "Directed
Selling Efforts," i.e., any activity undertaken for the purpose of, or that
could reasonably be expected to have the effect of, conditioning the market in
the United States for any of the Securities being purchased by the Buyer.
(g) The Securities when issued and delivered will be duly and validly
authorized and issued, fully paid and non-assessable and will not subject the
holders thereof to personal liability by reason of being such holders. There are
no preemptive rights of any shareholders of the Company. The Securities are free
and clear of any security interest, liens, claims, or other encumbrances.
(h) The Agreement has been duly authorized, validly executed and
delivered on behalf of the Company and is a valid and binding agreement in
accordance with its terms, subject to general principles of equity and to
bankruptcy or other laws affecting the enforcement of creditors' rights
generally.
4. EXEMPTION; RELIANCE ON REPRESENTATION.
(a) Buyer understands that the offer and sale of the Shares are not
being registered under the 1933 Act. The Company is relying on the rules
governing offers and sales made outside the United States pursuant to Regulation
S as an exemption from registration for this transaction between the Company and
the Buyer. Buyer agrees that the Securities can not be sold except in accordance
with the provisions of Regulation S, pursuant to registration under the 1933
Act, or pursuant to an available exemption from registration; and agrees not to
engage in hedging transactions with regard to the Securities unless in
compliance with the 1933 Act.
(b) Buyer agrees that the Securities are "restricted securities" as
defined in SEC Rule 144(a)(3). The Company is bound by this Agreement to refuse
to register any transfer of the Securities not made in accordance with the
provisions of Regulation S, pursuant to registration under the 1933 Act, or
pursuant to an available exemption from registration.
5. TRANSFER AGENT INSTRUCTIONS.
The Company will deliver or cause to be delivered to the Buyer upon
receipt of this Agreement and the subscription payment certificates and
instruments representing the Securities in the name of Buyer. All certificates
and instruments shall bear appropriate restrictive legends to the effect that no
transfer of the Securities may be made except in compliance with the provisions
of Regulation S. The Company and Buyer agree that the Company's transfer agent
is hereby directed and authorized to refuse to register any transfer of the
Securities that is not made in accordance with the provisions of Regulation S.
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6. REGISTRATION RIGHTS.
Attached hereto as Exhibit D is the Registration Rights Agreement
pursuant to which the Company agrees to register certain of the Securities for
resale by the Buyer.
7. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.. Buyer understands that the
Company's obligation to sell the Securities is condition upon:
(a) The receipt and acceptance by the Company of this Subscription
Agreement executed by Buyer, and
(b) Delivery to the Company of good funds as payment in full for the
purchase of the Securities.
8. GOVERNING LAW.
This Agreement shall be governed by and interpreted in accordance with
the laws of the State of California, United States of America. A facsimile
transmission of this signed agreement shall be legal and binding to all parties
hereto.
9. MODIFICATION.
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, supersedes all existing agreements among
them concerning such subject matter, and may be modified only by a written
instrument duly executed by each party with the approval of their respective
boards of directors.
10. NON-ASSIGNABLE.
This Agreement is not assignable or transferable to any other party.
11. ATTORNEY FEES.
Buyer shall be responsible for his own legal fees in connection with
the execution and negotiation of this Agreement. If any action at law or equity,
including an action for declaratory judgment is filed, or if an arbitration
proceeding is brought to enforce or interpret the terms, covenants or provisions
of this Agreement, each party agrees to bear their own attorneys' fees and
costs.
12. FORM OF OWNERSHIP. Please indicate the form of ownership that the Buyer
Subscriber desires for the Securities:
____ Individual
____ Joint Tenants with Right of Survivorship
____ Tenants in Common
____ Community Property
____ Trust
____ Corporation
____ Partnership
____ Other:_____________________________
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IN WITNESS WHEREOF, this Offshore Securities Purchase Agreement was
duly executed on the date first written below.
Dated this _________ day of the month of ________________________ 2004.
Buyer:
_______________________________________________
Print Name of Buyer
By:____________________________________________
_______________________________________________
Print Name and Title of Signer
_______________________________________________
Address
_______________________________________________
City
_______________________________________________
Country
Accepted this _________ day of the month of ______________________________ 2004.
SYNTHETIC BLOOD INTERNATIONAL, INC.
By:____________________________________
Xxxxxx Xxxxxx, President
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